SECOND SECTION
DECISION
Application no. 25357/10
Kerim YENİDÜNYA
against Turkey
The European Court of Human Rights (Second Section), sitting on 3 July 2018 as a Committee composed of:
Paul Lemmens, President,
Valeriu Griţco,
Stéphanie Mourou-Vikström, judges,
and Hasan Bakırcı, Deputy Section Registrar,
Having regard to the above application lodged on 14 April 2010,
Having regard to the decision of 5 June 2012,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicant,
Having deliberated, decides as follows:
THE FACTS
1. The applicant, Mr Kerim Yenidünya, is a Turkish national, who was born in 1970 and lives in Istanbul.
2. The Turkish Government (“the Government”) were represented by their Agent.
A. The circumstances of the case
3. The facts of the case, as submitted by the parties, may be summarised as follows.
4. On 23 January 2003 the applicant was taken into custody.
5. On 26 January 2003 the applicant was placed in detention on remand.
6. On 17 February 2003 and 16 January 2004, respectively, the public prosecutor filed indictments with the İstanbul State Security Court charging the applicant with, inter alia, forming an organisation with the intention to commit crimes and membership of that criminal organisation. The cases were joined at a later stage of the proceedings.
7. Following the abolition of State Security Courts by Law no. 5190, the criminal proceedings against the applicant were resumed before the İstanbul Assize Court.
8. On 9 April 2008 the İstanbul Assize Court convicted the applicant as charged and sentenced him to life imprisonment for murder and to a total of thirteen years, nine months’ imprisonment for the remaining accusations brought against him.
9. On 20 July 2010 the Court of Cassation quashed the judgment of the first-instance court. The case was accordingly remitted before the first‑instance court.
10. On 12 January 2011 the İstanbul Assize Court ordered the applicant’s release pending trial.
11. According to the latest information, the criminal proceedings against the applicant were still pending.
B. Relevant domestic law and practice
12. A description of the relevant domestic law and practice can be found in A.Ş. v. Turkey (no. 58271/10, §§ 34-35, 13 September 2016), Şefik Demir v. Turkey ((dec.), no. 51770/07, §§ 29-33, 16 October 2012) and Turgut and Others v. Turkey ((dec.), no. 4860/09, §§ 19-26, 26 March 2013).
COMPLAINTS
13. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive.
14. The applicant further maintained under Article 5 § 5 that he had no right to compensation under domestic law in respect of his complaint under Article 5 of the Convention.
15. Finally, the applicant alleged under Article 6 § 1 of the Convention that the criminal proceedings brought against him had not been concluded within a reasonable time.
THE LAW
A. As regards the applicant’s complaint under Article 5 § 3 of the Convention
16. The applicant complained under Article 5 § 3 of the Convention that the length of his pre-trial detention had been excessive.
17. The Government asked the Court to reject this complaint due to non‑exhaustion of domestic remedies. In this respect, they submitted that the applicant should request compensation pursuant to Article 141 of the Code on Criminal Procedure (“CCP”).
18. The Court observes that the domestic remedy in application of Article 141 § 1 (d) of the CCP with regard to length of detention on remand was examined in the cases of A.Ş. v. Turkey (no. 58271/10, § 85-95, 13 September 2016) and Şefik Demir v. Turkey ((dec.), no. 51770/07, §§ 17‑35, 16 October 2012).
19. In the case of Şefik Demir (cited above) the Court held that that remedy had to be exhausted by the applicants whose convictions became final. It further ruled in its judgment of A.Ş. (cited above, § 92) that as of June 2015 the domestic remedy provided for in Article 141 § 1 (d) of the CCP had to be exhausted by the applicants even before the proceedings became final.
20. In the instant case, the Court notes that the applicant’s detention ended on 12 January 2011 with his release from detention on remand, yet there is no information whether the proceedings against him are still pending or have become final. However, the Court observes that the applicant was entitled, in both situations, to seek compensation under Article 141 § 1 (d) of the CCP. However, he failed to do so.
21. The Court reiterates that the assessment of whether domestic remedies have been exhausted is normally carried out with reference to the date on which the application was lodged with the Court. However, as the Court has held on many occasions, this rule is subject to exceptions, which may be justified by the particular circumstances of each case (see İçyer v. Turkey (dec.), no. 18888/02, § 72, ECHR 2006-I). The Court has previously departed from this rule in cases concerning the above-mentioned remedy in respect of the length of detention, which became applicable after the final decision on the criminal proceedings (see also, among others, Tutal and Others v. Turkey (dec.), no. 11929/12, 28 January 2014). The Court takes the view that the exception should be applied in the present case as well.
22. As a result, taking into account the Government’s objection, the Court concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non-exhaustion of domestic remedies.
B. As regards the applicant’s complaint under Article 5 § 5 of the Convention
23. The applicant complained under Article 5 § 5 of the Convention that he had no right to compensation under domestic law in respect of his complaint under Article 5 of the Convention.
24. The Court reiterates that paragraph 5 of Article 5 is complied with where it is possible to apply for compensation in respect of a deprivation of liberty effected in conditions contrary to paragraphs 1, 2, 3 or 4 (Wassink v. the Netherlands, 27 September 1990, § 38, Series A no. 185-A). As noted above (see paragraphs 16-22), the Court observes that, even assuming that there has been a violation of his rights under Article 5, § 1, 2, 3 or 4, the applicant would have the right to claim compensation under Article 141 of the CCP, which provides an effective remedy to the applicant within the meaning of Article 5 § 5 the Convention.
25. Accordingly, it follows that this part of the application is manifestly ill‑founded and must be rejected in accordance with Article 35 §§ 3 (a) and of the Convention.
C. As regards the applicant’s complaint under Article 6 § 1 of the Convention
26. The applicant complained that the length of the criminal proceedings against him had been incompatible with the “reasonable time” requirement laid down in Article 6 § 1 of the Convention.
27. The Government noted that pursuant to Law no. 6384 a Compensation Commission had been established to deal with applications concerning the length of proceedings and the non-execution of judgments. They maintained that the applicant had to apply to the Compensation Commission to exhaust the domestic remedies.
28. The Court observes that, as pointed out by the Government, a domestic remedy has been established in Turkey following the application of the pilot judgment procedure in the case of Ümmühan Kaplan v. Turkey (no. 24240/07, 20 March 2012). Subsequently, in its decision in the case of Turgut and Others v. Turkey ((dec.), no. 4860/09, 26 March 2013), the Court declared a new application inadmissible on the ground that the applicants had failed to exhaust domestic remedies, that is to say the new remedy. In so doing, the Court considered in particular that this new remedy was a priori accessible and capable of offering a reasonable prospect of redress for complaints concerning the length of proceedings.
29. The Court notes that in its decision in the case of Ümmühan Kaplan (cited above, § 77) it stressed that it could nevertheless examine applications of this type which had already been communicated to the Government.
30. However, taking account of the Government’s preliminary objection with regard to the applicant’s failure to make use of the new domestic remedy established by Law no. 6384, the Court reiterates its conclusion in the case of Turgut and Others (cited above).
31. It therefore concludes that this part of the application must be rejected under Article 35 §§ 1 and 4 of the Convention for non‑exhaustion of domestic remedies.
For these reasons, the Court, unanimously,
Declares the application inadmissible.
Done in English and notified in writing on 6 September 2018.
Hasan BakırcıPaul Lemmens
Deputy RegistrarPresident
Full & Egal Universal Law Academy